DECLARATION OF JONATHAN JAY POLLARDIN SUPPORT OF MOTION FOR RESENTENCING

JONATHAN JAY POLLARD declares as follows under penalty of perjury:

I am presently incarcerated in the Federal Correctional Center, Butner, North Carolina. My inmate number is 09185-016. I submit this Declaration in support of the motion for resentencing, filed pursuant to 28 U.S.C. § 2255 by my attorneys,
Eliot Lauer and Jacques Semmelman of the law firm of Curtis, Mallet-Prevost, Colt & Mosle LLP.

I have been in jail since November 21, 1985. I am serving a sentence of life in prison, imposed upon me March 4, 1987 by the United States District Court for the District of Columbia. My petition is based upon the complete and utter failure of my attorney, Richard Hibey, to protect my fundamental rights in the district court.

I have only recently come to understand, largely through the efforts of my new counsel, Messrs. Lauer and Semmelman, that Mr. Hibey failed in numerous respects to represent me in accordance with basic standards of professional conduct. As a result, I now understand that my sentence of life in prison was imposed as a result of Mr. Hibey's inadequate and unprofessional handling of my sentencing. His failure to represent me properly deprived me of my constitutional right to effective assistance of counsel.

Perhaps most significantly, Mr. Hibey never filed a Notice of Appeal from my sentence. Nor did he ever tell me that failure to file a Notice of Appeal within ten days of my sentencing would forever deprive me of the right to appeal my sentence. By those failures, he doomed me to life in prison without the opportunity for direct appellate review of my sentence or of the process that led to it.

By this motion, I seek only that my sentence be vacated and that I be resentenced at a fair proceeding in which I am represented by competent counsel.

I now understand that, in addition to his failure to appeal or to tell me of my need to file a timely Notice of Appeal, Mr. Hibey did not effectively represent me at sentencing in the following respects:

Mr. Hibey failed to object at sentencing that the government was, for all intents and purposes, asking the Court to impose a life sentence, in violation of my Plea Agreement.

Mr. Hibey failed to deal competently with unproven, highly damaging eleventh hour factual assertions made by the government in a Supplemental Declaration of Secretary of Defense Caspar Weinberger (the "Weinberger Supplemental Declaration") submitted the day before sentencing, in the following fundamental ways:

He failed to object to the last minute timing of the Weinberger Supplemental Declaration, and failed to request an adjournment of sentencing;

He failed to rebut, or even to attempt to rebut, the highly damaging factual assertions in the Weinberger Supplemental Declaration, such as the false allegation that I had caused more damage to national security than had any other recent spy;

He failed to demand that the government either prove its allegations in the Weinberger Supplemental Declaration or withdraw them;

He failed to inform me that I had the right to a hearing at which the government would have to prove the allegations in the Weinberger Supplemental Declaration and at which I could offer rebuttal evidence.

Mr. Hibey failed to deal competently with the government's accusation to the sentencing judge that my interviews with a journalist, Wolf Blitzer, were breaches of (i) the Plea Agreement and (ii) the Court's Protective Order, and that those purported breaches evidenced my dishonesty and continued defiance of government authority, in the following fundamental ways:

Mr. Hibey failed to tell the sentencing judge that I had sought and obtained government authorization for the interviews, and he erroneously conceded that the interviews were unauthorized;

Mr. Hibey failed to demand a hearing to establish that the government had authorized the interviews, or to tell me that I had the right to such a hearing;

Mr. Hibey breached the attorney-client privilege by telling the sentencing judge that I had given the interviews against his advice, thus further inflaming the judge against me;

Mr. Hibey failed to demand that the government prove its false allegation that I had disclosed classified information during the second interview and had thereby breached the Court's Protective Order, or to tell me that I had the right to a hearing on that issue;

Mr. Hibey failed to deal competently with the government's allocution that went far beyond the "facts and circumstances of the offenses," to which the government had agreed in the Plea Agreement to limit its allocution. The government resorted to ad hominem attacks on my character, calling me a "recidivist" who was "contemptuous of this Court's authority," "unworthy of trust," "traitorous," "arrogant," "deceitful," "without remorse," and "addicted to the high lifestyle." Even though these highly damaging and untrue attacks breached the Plea Agreement because they were not the "facts and circumstances of the offenses," Mr. Hibey never objected.

Moreover, even though Mr. Hibey had asserted in the district court that the government had breached my Plea Agreement by failing to properly bring the extent and value of my cooperation to the sentencing judge's attention in good faith, thereby preserving that issue for appeal, Mr. Hibey did not appeal my sentence. Putting aside the numerous issues Mr. Hibey failed to raise in the district court, he did not even bother to file an appeal based upon the issue he did raise.

Background Facts

I was arrested November 21, 1985, and charged in a criminal complaint with violating 18 U.S.C. §§ 794(a) and 793(e). I have been incarcerated continuously since that day—nearly fifteen years. A day or so after my arrest, I learned that my family had arranged for an attorney named Richard Hibey to represent me. I met him at around that time, when he came to see me in the D.C. jail. I later learned that most of his fees were paid by the Government of Israel.

On May 23, 1986, following an exploratory period of several months during which I had begun cooperating with the government, I signed a plea agreement (the "Plea Agreement"). As part of the Plea Agreement, I agreed to continue my cooperation and to plead guilty to one count of conspiracy to commit espionage, in violation of 18 U.S.C. § 794(c).

That statute carried a maximum penalty of life in prison. However, the Plea Agreement provided that, while the government could seek a "substantial period of incarceration,"it could not ask the sentencing judge to impose a sentence of life in prison. (Plea Agreement 4(b)).

The Plea Agreement also provided that I would cooperate fully with the government. In turn, the Plea Agreement provided:

When he appears before the Court for sentencing for the offense to which he has agreed to plead guilty, the Government will bring to the Court's attention the nature, extent and value of his cooperation and testimony. . . In general, . . . the Government has agreed to represent that the information Mr. Pollard has provided is of considerable value to the Government's damage assessment analysis, its investigation of this criminal case, and the enforcement of the espionage laws.

(Plea Agreement 4(a))

Finally, the Plea Agreement provided that "The Government retains full right of allocution at all times concerning the facts and circumstances of the offenses committed by Mr. Pollard . . ." (Plea Agreement 4(b)) (emphasis added). This differed from my then-wife Anne Henderson Pollard's plea agreement, which provided, in the parallel section, that "The Government retains full right of allocution at all times, including the right to detail the facts and circumstances of the offenses committed by Mrs. Pollard . . . ." (Anne H. Pollard Plea Agreement 4(b)) (emphasis added).

On June 4, 1986, pursuant to the Plea Agreement, I pled guilty to one count of conspiracy to commit espionage, in violation of 18 U.S.C. § 794(c). The 15-page indictment charged me with delivering classified materials with "intent and reason to believe that the same would be used to the advantage of Israel, in violation of Title 18 United States Code, Section 794(a)." (Indictment 15) (block capitals omitted). The government did not explicitly charge me with harming the United States, and did not, explicitly or implicitly, charge me with intending to harm the United States. Similarly, in a 12-page Factual Proffer filed by the government on or about June 4, 1986, the government never alleged that I had harmed, or had intended to harm, the United States. I certainly had never intended to harm the United States.

The government has conceded that, pursuant to my Plea Agreement, I cooperated fully, and that my cooperation had considerable value. (See Govt's First Memorandum in Aid of Sentencing at p. 37.)

The Weinberger Supplemental Declaration

I was scheduled to be sentenced March 4, 1987. That day, I was brought to a holding cell adjacent to the courtroom. Mr. Hibey came in, waving a document. He said that Secretary of Defense Caspar Weinberger (who, months earlier, had submitted a pre-sentencing declaration) had just submitted a second declaration to the Court. Mr. Hibey handed it to me. I read it. It was devastating. But it was not true. It accused me of "treason." I had never even been charged with treason, let alone found guilty of it. Even more significantly, Mr. Weinberger's statement that "in the year of the spy" I had caused more damage to national security than any other spy—an undisguised reference to Walker, Whitworth, and Pelton, each of whom had recently been sentenced to life in prison for spying for the Soviet Union—was completely false, and could easily have been rebutted.

At no time did Mr. Hibey tell me that I had the right to an adjournment, the right to offer evidence that could rebut the damaging allegations, the right to ask the Court to make findings of fact on the allegations, or the right to an evidentiary hearing at which the government would bear the burden of proving its allegations. To the contrary, Mr. Hibey told me that the sentencing could not be adjourned and that nothing could be done.

The sentencing went forward. The judge sentenced me to life in prison.